The Historical Origins of the Sanction of Imprisonment for Serious Crime

Abstract

The movement for the abolition of capital punishment is righty associated with the writers of the Enlightenment, especially Beccaria, whose enormously influential tract appeared in 1764. Perhaps because the abolitionists drew so much attention to the gore of the capital sanctions of the eighteenth century, it has seldom been realized that capital punishment was already in a deep decline in the age of Beccaria and Voltaire. Writing to Voltaire in 1777, Frederick the Great boasted that in the whole Prussian realm executions had been occurring at the rate of only 14 or 15 per year. When John Howard visited Bremen in 1778 he discovered that" [t ]here has been no execution in this city for twenty-six years." The abolition movement that we associate with Beccaria and Voltaire was a second-stage affair. Indeed, it had to be. For abolition presupposes the existence of a workable alternative for the punishment of serious criine. By the time of the American Revolution, the sanction of imprisonment for serious crime was in use throughout Europe, and England had developed a near equivalent. Although it is commonly said that "[t] he history of imprisonment has often been told," Americans have not listened with much care. The claim is incessantly made that "[p] risons ... are a pervasive American export, like tobacco in their international acceptance and perhaps also in their adverse consequences." There were indeed some novelties to the nineteenth-century American prisons, but the essentials were long established in Europe. This article draws upon the rich but scattered Continental scholarship in order to describe the origins of imprisonment in Europe and to relate it to the parallel developments that had taken place in the common law by the eve of American independence.